Piercing the Sanctimonious Veil of Progressivism: An Examination of a Defense of the Internet Archive Grounded in an Alternative Reality
by Neil Turkewitz
A few weeks ago, John Jeff Roberts penned a piece for Fortune entitled “As libraries fight for access to e-books, a new copyright champion emerges.” When I saw the title, I wondered aloud (like, actually aloud), “I wonder what’s happening between libraries and publishers on the e-book front?” But then I read on, and realized that this wasn’t in fact about the relationship between libraries and authors/publishers — it was about the Internet Archive’s attempted land grab during COVID when they took it upon themselves to “free books” from the hands of authors and make them available to their patrons — notwithstanding the manifest economic precarity of authors as continuously highlighted by the Authors Guild.
I have written quite a few pieces about this injustice masquerading as justice, including here and here, and refer you to those. For instant purposes, I just want to focus on the deception employed from the very first sentence of Roberts’ piece. I also want to note that I am not writing about the “digital publishing copyright champion,” Lila Bailey. I don’t know her. She sounds like a lovely person, and perhaps some day I will be fortunate enough to meet her. If she is inspired by art and literature, we have much in common. No, I have one goal here and only one — to expose deception and hypocrisy in the retelling of history.
The deceptive framing starts with the very first line of the article: “A long running battle over copyright has flared up again, and Lila Bailey is at the center of it.” This is little more than a dog whistle to remind their readers of the identity of the participants. On the one side, you have those crazy copyright folks. “Remember when they sued to try to stop the VCR? Or when they tried to pass SOPA? Well, they’re at it again.” And on the other side is the lone warrior for justice — Lila Bailey. The David against the collective might of the Goliaths. But every part of this narrative is wrong.
To begin with, what exactly is this “long running battle?” Well, back in the real world, the present dispute stems from the Internet Archive’s decision in the spring of this year to change its lending practices and to abandon the limitations on lending which it had earlier adopted to try to defend its lending practices to begin with. I don’t know about the rest of you, but I’m not sure I’d characterize a dispute that started at the end of March with the unilateral announcement by the Internet Archive of their “Emergency Library” as “long running.”
While the legal action initiated by the publishers also challenges the legality of the underlying practice of “controlled digital lending,” the immediate dispute was a direct response to the decision of the Internet Archive to launch their emergency library.
Roberts continues: “A personable 43-year-old with degrees in philosophy and law, Bailey is the chief lawyer for the Internet Archive, a non-profit facing a major lawsuit from big publishers over how it lends out e-books.” Again, I am not making any comments about Bailey herself — only addressing the framing which completely distorts the relative equities. Roberts, just as the Internet Archive’s founder Brewster Kahle does, pretends this is a dispute between “big publishers” and a “non-profit.” No reference at all to authors. So were authors silently sitting on the sidelines of this “battle?” Not at all. The Authors Guild repeatedly highlighted the basic unfairness — both of the underlying practice of so-called “Controlled Digital Lending,” and in particular in connection with the National Emergency Library — highlighting that the mean annual income of authors in the United States is a paltry $20,300. Perhaps worth comparing that to the wealth of the patron of the Internet Archive.
And authors were highly engaged in the case against Internet Archive. A NY Times story at the time the lawsuit was filed quoted writer and president of the Authors Guild, Douglas Preston, that the “wholesale scanning and posting of copyrighted books without the consent of authors, and without paying a dime, is piracy hidden behind a sanctimonious veil of progressivism.”
The Internet Archive’s failure to acknowledge the impact on authors, a failure continued by Roberts here, led to me write a piece entitled: Internet Archives & the Emergency Library: How to Love Books & Hate Authors Without Really Trying.
In that piece, I cited the Authors Guild at length: “With mean writing incomes of only $20,300 a year prior to the crisis, authors, like others, are now struggling all the more — from cancelled book tours and loss of freelance work, income supplementing jobs, and speaking engagements…The Internet Archive is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign…Acting as a piracy site — of which there already are too many — the Internet Archive tramples on authors’ rights by giving away their books to the world.”
Coming back to Roberts’ piece, he continues to weave his tale by citing Bailey for the proposition that: “This case will determine what libraries will be. We think the future of libraries hangs in the balance here.” But what if it doesn’t determine the future of libraries? What if it only determines the future of private entities deciding for themselves to set up a process for scanning and distribution of books without any form of licensing? You see, libraries, unlike the Internet Archive, have licensing arrangements with publishers for e-lending. While libraries and publishers may not always be aligned, there is a fundamental — if fragile — understanding that they are interdependent and symbiotic. The Internet Archive, on the other hand, maintains a purely parasitic relationship to the creators of the raw materials in which it trades. The Internet Archive and its champions want you to believe that it is fighting on behalf of libraries, but that is simply not true.
The weaving of a false narrative continues throughout the piece. A few key examples:
“The publishing industry sued, saying the non-profit was handing out digital books without permission.” Why this framing? Isn’t it an undisputed fact that IA was distributing books without permission? Merely another rhetorical device to suggest that in contrast to a non-profit, the “industry” was alleging something.
“The Internet Archive case has received national attention — a widely shared article in The Nation described it as ‘publishers taking the Internet to court.’” Now that’s just weird. Roberts cites hyperbole from an article in the Nation as support for some proposition? Unclear what that proposition is — other than the general reminder to his readers — in case they were sleeping, that copyright owners are evil and hate the internet. It definitely would save everyone time if he just clearly said that once at the beginning of the article instead of dropping “reminders” to his audience, but that kind of transparency might not be quite so effective, eh?
Then we get to one of the most outrageous statements of them all which comes as close to laying out his thesis as any: “While some of the legal details are new, the underlying conflict is not: Since the late 1990s, the publishing and entertainment industry has clashed bitterly with Internet users and public interest advocates over how to distribute the fruits of the digital economy.” To begin with, let’s again note the framing — the “industry” has clashed with others. Not authors, not creators, not artists, not cultural workers. Only industry. And who likes industry? Roberts posits that on the other side of this “bitter clash” are internet users and public interest advocates. But of course, it would be far more honest and accurate to say that “Since the late 1990s, cultural workers & companies in the creative sector have clashed bitterly with billion dollar internet companies who grew their fortunes on the backs of an unpaid conscripted labor force.”
Since I must end this piece somewhere, I might as well close on the saddest note. Roberts quotes Bailey as saying: “We’d love to be in talks with the publishers. We prefer conversation to litigation.” This really does make me want to cry. The Internet Archive decided unilaterally to launch its Emergency Library. They didn’t reach out to authors or publishers. This preference for conversation was nowhere to be found. Indeed, I remarked on that in an earlier article:
“As part of their original announcement, the Internet Archive touted that: “Public support for this emergency measure has come from over 100 individuals, libraries and universities across the world, including the Massachusetts Institute of Technology (MIT).” They simultaneously observe that: “We hope that authors will support our effort to ensure temporary access to their work in this time of crisis. We are empowering authors to explicitly opt in and donate books to the National Emergency Library if we don’t have a copy. We are also making it easy for authors to contact us to take a book out of the library.”
Okay, so let’s explore that for a second. Prior to launching this project, the Internet Archive reached out and got the support of a large number of institutions and individuals who are not authors, yet magically failed to reach out to the community of workers most directly affected by the Archive’s generosity in sharing its collection of unauthorized copies? Instead, they express their “hope” that authors will support it, and provide a mechanism for opting-out? That’s not only not how the law works, but it is irredeemably dishonest, presumptuous and wholly ignores the reality of the existence of most authors…
The irony presented by the Internet Archive’s announcement of the Emergency Library is that it’s not at all clear to me that the great majority of publishers and authors wouldn’t have granted permission had they been asked. I can assure you that authors and publishers love books — and want to promote reading (which requires access to books) as much as the folks over at the Internet Archive. That they are well aware of the emergency conditions and the role that books and other cultural materials can and do play in society. Indeed, the actions of the Internet Archive ignore the outpouring of support from the academic and literary community, some of which are detailed in this post from the Association of American Publishers (AAP), and this from Copyright Clearance Center (CCC).
Sadly, we will never know how authors and publishers would have responded to overtures from the Internet Archive since Kahle decided to take that decision out of their hands, and instead chose the standard Silicon Valley approach of asking for forgiveness instead of permission. Because our humanity and the demands of progress and innovation apparently require us to forego individual decision-making. After all, free will is just a technicality, right?”
And to close this chapter on the Internet Archive’s preference for conversation rather than litigation, I will remind you, dear reader, that there is no need for a hypothetical. In fact, in 2017, the Authors Guild reached out publicly to the Internet Archive to seek a dialogue. Alas, their interest in a dialogue was not reciprocated.
The Authors Guild notes: “We offered to work with Internet Archive in 2017 to create a licensing system that would make Open Library compliant with the copyright law, and that offer was rejected. Internet Archives’ unwillingness to work with authors and publishers to make their program legal unfortunately made a lawsuit the only recourse.”
Well, I’ve done a great job of depressing myself. It will have been worth it if I have helped to illuminate the truth. The article ends with a quote from Bailey: “At the end of the day, we all want great creative stuff to be out in the world, including great books and great art and movies. We can all agree on that, so it’s weird we can’t agree on a way to get there.” Here’s to ending that particular weirdness. Truth is the path.
End Note
I can’t help but point out the irony that the first words after the article’s heading come from Fortune: “Our mission to make business better is fueled by readers like you. To enjoy unlimited access to our journalism, subscribe today.” I fear they have undermined their own mission…in every respect .
